Institution Building for a Fact-Based Rulemaking Process

In recent years, several high profile administration rules have been overturned by the courts (“net neutrality” from the Federal Communications Commission (FCC), “gainful employment” from the Department of Education) or withdrawn after a storm of public protest and comment (Centers for Medicare and Medicaid Services’ (CMS) Medicare Part D rule or the Internal Revenue Service rule for 501(c)(4) candidate-related activities). Why have agencies so regularly been unable to promulgate rules that stand the tests of judicial and public scrutiny?

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